'Group Use' Rules...REVIEW

[ The Constitutional, Environmental, & Human Impacts ]

[ of Proposed USFS Regulation -- An Abstract ]

(( Note: The "Legal & Land Use Review" is a rigorous analysis of 'Group Use' policy, arising from a consensus of many learned views. It has been presented to various public-interest organizations, Congressional committees, Dept. of Agriculture & Forest Service officials, and the White House. ))

<<>><<>> A LEGAL & LAND USE REVIEW <<>><<>>

Washington, DC -- December 1993

** {ABSTRACT: Summary of the Critique} **

BACKGROUND & SCOPE

On 5/6/93 the U.S. Forest Service proposed amendments to 36 CFR Parts 251/261, establishing a permit requirement for assemblies of more than 25 people on public land. This is posed as a routine Special Use regulation, yet its impact upon First Amendment rights is ignored. The judicial record is clear:

In two previous Federal court tests, nearly identical rules were found to be unconstitutional.

* United States v. Israel, No. Cr.-86-027-TUC-RMB, Dist. Ariz. May 1000, 1986

* United States v. Rainbow Family, 695 F.Supp. 294, E.D. Tex. 1988

The Agency argues that the rewritten 'Group Use' rules have been tailored to comply with the prior court opinions, and this survey responds to that language and logic. But where no factual grounds are offered for such regulations, the analysis must go further to assess their real impact and intent:

>> Since the rules are put forth under the guise of environmental regulation, it must determine whether they actually serve any legitimate purposes of land and resource protection.

>> And since they are built upon a history of questionable and sometimes draconian enforcement tactics on the part of the government, the political motives must also be examined.

LIMITS OF AUTHORITY

"The purpose of this proposed rule is to regulate noncommercial group events and noncommercial distribution of printed material on National Forest System lands in compliance with First Amendment rights of assembly and free speech."

{Federal Register, 58:86, pg. 26940.}

In this stated motive, the Agency presumes to strike a delicate balance... only at issue because such activity is arbitrarily defined as a "Special Use", to justify a permit authority. By law, if no environmental need or impacts are demonstrated, there is no 'rational basis' for regulation.

With a long record of gatherings leaving sites thoroughly clean and restored, public assembly does not even qualify as a "use".

This rulemaking disregards the history of responsible cooperation and consensual "Operating Plans" as offering a workable policy alternative -- one that must be considered as 'least restrictive means' to its regulatory ends.

And as the court observed in the landmark Texas case, there is already "...a panoply of statutory and regulatory grounds" to address concerns over group events on public land (at 314).

Where a rule restricts First Amendment rights, the test is more stringent, yet the Agency still evades accountability for basic constitutional premises and effects. First, the permit process vests responsibility in a designated individual signer; if the group must be structured as an hierarchal entity for the purposes of regulation, those who share a belief in consensual democracy are violated in that belief.

Further procedural ploys reveal the intent: No specific timeframe is stated for processing group event permits, opening the door to capricious delays. Moreover applicants would be subject to a very broad review framework, and an undue burden of proof that their activities would have no impact on the land or conflict with existing laws. This violates the Agency's own guidelines under the National Environmental Policy Act (NEPA), which exempt such transitory, non-impact events from major review.

By invoking vague authorities and unlawful requirements, the USFS infringes upon First Amendment expression, yet still fails to justify any 'significant or compelling interest' in this unprecedented stricture.

THE SEVEN CRITERIA

The Forest Service sets forth seven criteria for granting a Special Use Permit, in the pretense of "narrowly-tailored" restrictions. But the rule still singles out First Amendment activites, and creates standards are so vague as to leave the Government broad latitude to deny Citizen access to Public Land:

The Agency can claim that a group assembly could conflict with existing or scheduled uses or the approved land/resource management plan. If an official speculated that public health or safety problems were possible, or that someone might commit a crime -- there would be grounds for refusing a permit. The sixth stipulation is that a proposed use must "...not involve military or paramilitary training or exercises by private organizations or individuals, unless such training or exercises are federally funded." A double-edge sword:

At once the Government assumes broad authority to directly restrict Second Amendment rights, and grants priority access to the National Forests for U.S. military or covert actions.

Finally, by requiring that a person over 21 sign a permit for a 'group event', the very nature of Free Assembly is violated: Where individuals gather by mutual will to share free expression and belief, no one may may assume leadership or liability for the group. Consensus is the heart of the First Amendment.

In sum, the USFS would assume vast powers of preemptive enforcement -- redundant to existing laws and exceeding its legal authorities -- with the chilling effect of prior restraint on Constitutional rights. As the Texas court saw it in 1988 (at 323, citing Niemotko v. Maryland, 340 US 268):

"The 'very possibility of abuse' will invalidate a regulation requiring a permit for expressive activity."